Director of Public Prosecutions, R (on the application of) v West London Youth Court & Anor

The use of a screen to protect an undercover witness is exceptional and must be decided case by case. The court must balance the witness’s protection against the defendant’s right to see and identify an accuser and the resulting unfairness. Relevant matters include the reality of the risk, the importance of the evidence, the investigation and disclosure of credibility material, prejudice to the defendant, and whether lesser protective measures are sufficient.

A refusal to adjourn may be unlawful where it makes the prosecution’s inability to proceed inevitable. In such circumstances, the resulting acquittal may be quashed and the case remitted.

The Director of Public Prosecutions sought judicial review of two decisions made by a District Judge in the West London Youth Court. The judge refused an application for an undercover police officer to give evidence behind a screen and refused an adjournment to enable the prosecution to obtain legal advice about challenging that decision.

The defendant denied supplying drugs but accepted that contact with the officer had occurred. The prosecution subsequently offered no evidence, resulting in an acquittal. The central issues were whether the judge’s exercise of the screening discretion was flawed, whether the refusal to adjourn caused substantial unfairness, and whether the acquittal could consequently be quashed.

1. Screening discretion. The application was allowed. The right of a defendant to see and know the identity of prosecution witnesses is fundamental, subject to rare and exceptional cases. The discretion must be exercised individually and requires a balance between the need for protection, including the extent of protection required, and unfairness or the appearance of unfairness to the defendant.
2. The relevant considerations included whether there were real grounds for fearing the consequences of revealing the witness’s identity; the relevance and importance of the evidence; whether the witness’s credibility had been fully investigated and disclosed so far as consistent with the protection sought; whether undue prejudice would result; and whether lesser measures, such as screening or excluding the public, would suffice. Undercover officers have no automatic entitlement to anonymity.
3. The District Judge materially misunderstood the facts by treating the defendant as having seen the officer several times and by assuming that the video recording showed the officer’s face. She also failed properly to address why face-to-face identification was necessary, the nature of the defence, and the actual prejudice caused by screening. Those errors seriously flawed the balancing exercise.
4. Adjournment. Adjournments in youth proceedings should be avoided unless necessary, but the court must assess fairness, the reasons for delay, and the consequences for both parties. The refusal here was based on the erroneous conclusion that the trial could proceed without protecting the officer. It therefore caused substantial unfairness to the prosecution because it made offering no evidence inevitable.
5. The refusal to screen, refusal to adjourn, and resulting acquittal were inextricably linked. Following Director of Public Prosecutions v Birmingham City Justices, the court quashed the screening decision, the refusal to adjourn, and the acquittal. The case was remitted to the Youth Court for transfer to the adult Magistrates’ Court, with the screening issue to be reheard immediately before any further trial by a different District Judge. The prosecution’s delay in pursuing judicial review did not prevent discretionary relief.

This was an application for judicial review of decisions made by the West London Youth Court. The High Court quashed the decisions and the resulting acquittal, and remitted the matter for further consideration.